Federal Circuit disposition — 2010-m955-12-8-10-1-pdf

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# United States Court of Appeals for the Federal Circuit

IN RE DAVID UPTON,
Petitioner.

Miscellaneous Docket No. 955

On Petition for Writ of Mandamus to the United
States District Court for the Central District of California
in case no. 10-CV-0687, Chief Judge Audrey B. Collins.

ON MOTION

Before LOURIE, MAYER, and DYK, Circuit Judges.
PER CURIAM.

## ORDER

David Upton petitions this court for a writ of manda-
mus to direct the United States District Court for the
Central District of California to reassign to a different
judge his petition for a writ of habeas corpus. Upton also
seeks other relief. The Department of Justice, stating
that it represents the United States District Court for the
Central District of California as a respondent, submits a
motion to waive the requirements of Fed. Cir. R. 27(f)

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and to dismiss David Upton's petition for a writ of man-
damus for lack of jurisdiction .* Upton opposes. The
Department replies. We consider whether we have juris-
diction over this petition for a writ of mandamus.

Upton filed a petition for writ of habeas corpus in the
Central District of California, identifying the warden of
the California Institute for Men as the defendant. Subse-
quently, Upton filed the petition for writ of mandamus in
this court, seeking to have a district court judge and a
magistrate judge removed from his case for, inter alia,
failing to rule on his motion to expedite the proceedings
and his motion for summary judgment.

Upton has not shown that this court has jurisdiction
over his petition. Under 28 § U.S.C. 1651, this court may
only issue writs necessary or appropriate in aid of its
jurisdiction. This court's jurisdiction to review district
court decisions is limited primarily to cases involving
patents and suits against the United States not exceeding
$10,000 and does not include review of rulings on peti-

\* It appears that the actual respondent in this peti-
tion should be the Warden of the California Institute for
Men, and not the district court. This court did not invite
or order the trial court to respond to the petition pursuant
to Fed. R. App. P. 21(b). However, the district court or
district court judge might be regarded as a nominal
respondent in a petition for a writ of mandamus. See
generally Cotler v. Inter-County Orthopaedic Ass'n, 530
F2d 536 (3d Cir. 1976) (discussing actual respondent and
nominal respondent, under previous version of Fed. R.
App. P. 21 that expressly treated trial courts and trial
court judges as respondents). In any event, because we
determine that we lack jurisdiction over this petition, and
because we did not direct a response to the petition, we
need not address this matter further.

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tions for writs of habeas corpus. See 28 U.S.C. §§ 1295
(a)(1), (2).

Accordingly,

IT IS ORDERED THAT:

(1) The petition is dismissed for lack of jurisdiction.
All sides shall bear their own costs.

(2) All other pending motions are denied as moot.

FOR THE COURT

DEC 0 8 2010

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: David Upton
Christopher A. Bowen, Esq.
United States District Court, C.D. Calif., Clerk

$20

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
DEC 0 8 2010

JAN HORBALY
CLERK